Lewis et al v. Kenosha Visiting Nurse Association et al

Filing 17

ORDER signed by Judge Rudolph T. Randa on 5/8/2014. 2 MOTION for Leave to Proceed in forma pauperis filed by William L. Lewis GRANTED. Defendant Pedro Flores, Sr. DISMISSED from action for failure to prosecute. Kenosha Visiting Nurse Association DI SMISSED from action. US Marshal Service to serve copy of complaint and this Order upon named defendants pursuant to FRCP 4. Defendants to file responsive pleading to complaint. Plaintiff Lewis to pay balance of $350 filing fee to Clerk of Court. (cc: all counsel, via US mail to William Lewis, Pedro Flores at Kenosha County Detention Center, Kenosha County Sheriff)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

WILLIAM L. LEWIS
and PEDRO FLORES, SR.,
Plaintiffs,
-vs-

Case No.

13-CV-1210

KENOSHA VISITING NURSE ASSOCIATION,
MR. HANSCHE, MR. KEISHER,
MR. PARKER, MRS. REBBECCA,
DOES, sued as Kenosha County Detention Center
and Kenosha County Jail Supervisors,
UNKNOWN, sued as “any other medical nurse assistance
handling Health Service medical request forms,”
and MRS. BUTLER,
Defendants.

SCREENING ORDER

The pro se plaintiffs, William L. Lewis, who was previously confined at the
Kenosha County Detention Center but who now resides in Waukegan, Illinois, and Pedro
Flores, Sr., who is confined at the Kenosha County Detention Center, filed a complaint under
42 U.S.C. § 1983, alleging that their civil rights were violated. This matter comes before the
court on the plaintiffs’ petitions to proceed in forma pauperis.
Plaintiff Lewis lacks the funds to pay an initial partial filing fee. 28 U.S.C.
§ 1915(b)(4). Therefore, his in forma pauperis petition will be granted.

Plaintiff Flores has not submitted a trust account statement despite three
requests for the statement from the Clerk’s Office advising that he is required to submit the
statement. Based on plaintiff Flores’ failure to submit the six-month trust account statement
or otherwise inform the Court as to why he has failed to do so, this Court infers that he no
longer wishes to prosecute this action. See Civil L.R. 41(c) (E.D. Wis.) (“Whenever it
appears to the Court that the plaintiff is not diligently prosecuting the action, the Court may
enter an order of dismissal with or without prejudice. Any affected party may petition for
reinstatement of the action within 21 days.”). Therefore, plaintiff Flores will be dismissed.
The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief
may be granted, or that seek monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b).
A claim is legally frivolous when it lacks an arguable basis either in law or in
fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may,
therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal
theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious,” although sometimes treated as a synonym for “frivolous,” “is more usefully

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construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir.
2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system, the
plaintiff is required to provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead
specific facts and his statement need only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action
will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should follow the
principles set forth in Twombly by first, “identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual

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allegations, the court must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that:
1) he was deprived of a right secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him by a person or persons acting under color of state
law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez
v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff Lewis alleges that he contracted scabies while confined at the Kenosha
County Detention Center. He further alleges that Kenosha County Detention Center and
Kenosha County Jail medical staff failed to provide correct medical attention for the
condition and that they failed to prevent further outbreaks of scabies. The plaintiff seeks
injunctive relief and monetary damages.
The plaintiff’s allegations regarding scabies at the jail appear to raise a
constitutional issue. See Ciccone v. Sapp, 238 F. App’x 487, 489 (11th Cir. 2007) (“scabies
could be deemed objectively serious”); Dusenbery v. United States, 208 F. App’x 180, 18283 (3d Cir. 2006) (defendant health care provider could be held liable for a violation of
inmate’s constitutional rights if he believed that the inmate had scabies and deliberately did

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not treat the disorder).
However, the Kenosha Visiting Nurse Association is not a suable defendant
under § 1983. If the plaintiff is claiming that his rights were violated pursuant to a policy or
custom at the jail, he must name Kenosha County as a defendant and also identify the policy
or custom. See Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690-91 (1978)
(finding that, to prevail against a county, the plaintiff would have to demonstrate that he
suffered a deprivation of his constitutional rights based on some official policy, widespread
custom, or deliberate act of a county decision maker of the municipality or department).
Finally, the plaintiff should use discovery to identify the Doe and Unknown
defendants.
ORDER
IT IS THEREFORE ORDERED that plaintiff Lewis’s motion for leave to
proceed in forma pauperis (Docket # 2) is granted.
IT IS FURTHER ORDERED that plaintiff Flores is dismissed from this
action for failure to prosecute.
IT IS FURTHER ORDERED that defendant Kenosha Visiting Nurse
Association is dismissed.
IT IS FURTHER ORDERED that the United States Marshal shall serve a
copy of the complaint and this order upon the named defendants pursuant to Federal Rule of
Civil Procedure 4. The plaintiff is advised that Congress requires the U.S. Marshals Service

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to charge for making or attempting such service. 28 U.S.C. § 1921(a). The current fee for
waiver-of-service packages is $8.00 per item mailed. The full fee schedule is provided at 28
C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service by the
U.S. Marshals Service precisely because in forma pauperis plaintiffs are indigent, it has not
made any provision for these fees to be waived either by the court or by the U.S. Marshals
Service.
IT IS ALSO ORDERED that the defendants shall file a responsive pleading
to the complaint.
IT IS FURTHER ORDERED that plaintiff Lewis shall pay the balance of the
$350.00 balance of the filing fee to the Clerk of Court.
IT IS ALSO ORDERED that a copy of this order be sent to the Kenosha
County Sheriff.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable Rudolph T. Randa
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the matter. As each filing will be electronically scanned and

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entered on the docket upon receipt by the clerk, the plaintiff need not mail copies to the
defendants. All defendants will be served electronically through the court’s electronic case
filing system. The plaintiff should retain a personal copy of each document filed with the
court.
The plaintiff is further advised that failure to make a timely submission may
result in the dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change of address.
Failure to do so could result in orders or other information not being timely delivered, thus
affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 8th day of May, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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